Aerial Incident of 27 July 1955 (Israel v. Bulgaria) - Judgment (Preliminary Objections)

Communi ué No,
e-

The following informatio nrom the Begistry of the International

Court of Justtce has been communlcatedto the Press:

Today, May 26th, 1959, the International Court of Justice delivered

its Judgmant in the cEse conceming the Aerial Incident of July 27th,

1955 (1srael -v. ~ulgasia) (~relirninar~0b jections).

The case was submitted by m Applicationof the Goverment of

IsraeL, on October 16th, 19579 relating to a dispute which had misen

with regard to the destmietion,on July 27th, 1955, by the Bulgarian

mti-aircraft defence forces, of an aircraftbelongingto El Al Israel

AirlinesLtd.
The Application invoked Article 36 of the Statute af the

Court and the acceptance of the compulsory jurisdictionof the Court by

Israel, on the one haad, in its Beclaration of 1956 replacing that of

195Ut and by Bulgaria, on the othes hand, in 1922. The 3uTgaria.n

Governent had filedPreliminary Objections to the jurisdiction of the

The Court upheld the first of these objections,accerding to which

the Declaratian acceptingthe compulsoryjurisdiction of the Permanent

Courtof International Justice made by Bulgaria in 1921 cannotbe

regarded as constituting an acceptmce of the compufsoryjuri~diction of

the International Court of Justice. It thereforedeclared itself to

be without jurisdiction.

x.

* *

In its Judgment, the Court first considered the FirstPreliminary

Objectionby Bulgaria.

In order to find the basis for the jurisdiction of the Court,

the ~overkent of lsrael invoked the Deçlakation of acceptanceof

compulsoryjurisdiction sigmed by Bulgaria in 1921,at thc sme time as

Protocol .m.. Protocol of Signature of the Statute of the Permanent Court of

International Justice, and Article36, paragra-ph 5, of the Statute of

the International Court of Justice,which reads as follows:

''Declasation sade under Article 36 of the Statute of the
Permanent Court of International Justice andwhichare still
in.fer8e shall be deemed, as between the parties to the
present Statute, to be acceptancesof the compulsoryjuris-
diction of the International Court of Justicefor.theperiod
rvhich Lhey still have to run and in accordance mith their
terms .fl

.To justify the application of the latter provision to the Bulgarian

Declmation af 2921, the Goverment of Israel relied on the fact that

Bulgaria becme a party to the Statute of the Intesrnational. Court of

Justice on December 14th, 1955,asthe result of its admission to the

United Nations. The Bulgarian Goverment dc~ied that Article 36?

parapaph 5, transferred the effect of its Declaration to the juris-

diction of the International Gour.+ of Justice.

The Court had to determine whether Article36, paragraph 5, is

qplicable to the Bulgarian Beclaration. That it should apply in

respect of declarations made by States which were representedat the

San FranciscoConference and viere signatories of the Charter,and of

the Statutecan easily be understood. But is this provision meant

. also to cover declarations made by other States, including Bulgaria?

The text doea not say so explicitly.

The Court obacrves that at the tine of the adoptionof the

Statute a fundamental differenceexis ted bettveen the position of the

signatory States anci of the othex States which might subsequentlybe

admitted to the United Nations, This difference derived £rom the

situationwhich Article 36, p%ragraph 5, aas meant to regulate,

namely, the trmsfer to .he International Court of Juaticeof

declarations relatingto the Permanent Court, whiçh was on the,

point of disappeaaning, The question which the signatory Statea

were easily able to resalve as bftween thernselves at that time would
. -
arise ..,,arise*in.aquitedifferent fori mn the futureas regardsthe other

States..

Article36, paragraph5, consideredin its applicationto States

signa$oriesof the Statute,.effecte adsimpleoperation.The position

wouldjhave.beeqnuitedifferent in respectof declarationsby non-

signatory States. For the latter,sucha transfer mus$necessarily

involvetwo distinctoperations, whichmight beseparated'b' ya

considerableintervalof time, On the one hand,old declarations

wouldhave hadto havebeenpreserved vritimmediate effect;on the

otherhand,they would havehad to be transferredto the jurisdiction

of thenew Court. In additionto this fundamental differenice.

respectof thefactorsof the problem,there were special.difficulties

in resolvingit in respectof acceptctnceby non-signatoryStates:

In the caseof signatoryStates,Article 36,paragraph 5,maintained

an existingobligation whilemodifying itssubject-matter. So far

as non-signatory Statewereconcerned, the Statute,in the absence

of theirconsent, couldneithermaintainnor transform theiroriginal

obligation.Shortlyafterthe entry into forceof theStatute,the

dissolution ofthe Permanent Court free themfromthatobligation.

Accordingly,the questionof a transformatioonf aziexistingobligation

couldno longerariseso far as theywere concernedg-a1t 1hatcould be

envisagedin theircasewas the creationof a nem obligatiob ninding

upont.hem.To extendArticle369 paragraph 5, to thoseStates would

be to allovrthatprovisionto do in theircasesomething quite

differentfromgi-ha tt di2 in the caseof signatoryStates. It is

truethat the States represente at San Franciscocouldhavemade an

offeraddressedto.otherStates,for instance,an offerto consider ,

theiracceptance of the compulsoryjurisdictionof thePermanent

Court ,asan acceptanceof the jurisdictioof thenew Court,but

thereis nothingof.thiskindin Article 36,'aragraph 5.

... To .o... To restrictthe appli'catioof thisprovisionto the'signatory

States is to take intaccountthe purposeforwhichit mas adopted.

At.thetime ofits adoption, the impendingdissolutionof the:permanent

Courtand,in consequence, the lapsingof acceptancesof its'compulsory

jurisdictiownere in contemplation.Rather thanexpecting that the

signatory Stateosf thenew Statutewould deposintew declarationsof

acceptance,it nas soughtto providefor thistransitory situationby

a transitionalprovision.The situationia entirelydifferent when,

thé old Courtand theacceptance of its compulsory jurisdictihaving

long sincedisappeared,a Statebecomespartyto the Statute,of the new

Court: To the extentthattherecordsof theSanFrancisco Conference

provideany indicationas to thescopeof the application of Article

36, paragraph5, theyconfirmthatthis.paragraph was intendedto deal

with declarationsof signatory States onalyd notwitha Statein the

situation ofBulgaria.

.However,the Governmentof IsraelconstruedArticle36, paragraph5,

askoveringa declaration madeby a State 'whichhad not participatein

the SanFranciscoConference and which onlybecamea partyto the

Statuteof the InternationaClourtof Justicemuch later.

The Court,consideringthematterfrom thisanglealso, foundthat 8

Article36, paragraph 5,couldnot in any eventbe operative as regards

Bulg&ia untilthe dateof its admissionto theUnitedNations,namely,

December14th,1955. At thatdate,hovrevert ,heDeclaration of 1921
'
was no longer inforcein.consequenco ef the dissolutioof the

Permarient.Couirt.1946. The acceptance'setou% in thatDeclaration

of the compulsory jurisdicti onthe Permanent Courtwas devoidof

object,sincethatCourtwas no longer inexistence. And there'is

nothingin Article36,paragraph 5, to revealany intentionof .

preservingal1 the declarationwshichwere in existenceat the time

of thesignatureor entryintoforce of the Charter,regardless of

themoment when a Statehavingmade a declaration becamea partyto

the..,.the Statute. The provision determines, in respect of a State. to which

it applies, the birth of the compulsory jurisdiction of the new Court.

It makes it çubject to two conditions: (1) that the State having made

the declaration should be a party to the Statute; (2) that the

dec1,aration of that State should still be in force. Since the

Bulgarian Declaration had lapsed before Bulgaria was admitted to the

United Nations, it cannot be said that at that timé that Declaration

rvss still in force. The second condition is therefore not satisfied in

the present case,

Thus the Court finds that Article 36, paragraph 5, is not applicable

to the Bulgarian Declaration of 1921. This viev~ is confirmed by the

fact that it was the clear intention inspiring Article 36, paragraph 5,

to preserve existing acceptances and not to restore legal force to

undertakings which had expired. On the other hand, in seeking and

obtaining admission to the United Nations, Bulgaria accepted al1 the

provisions of the Statute, including Article 36. But Bulgaria 1s

acceptance of ::rticle 36, pcragraph 5, docs not constitute consent to the

compulsory jurisdiction of the Court; such consent can validly be

given only in accordance with Article 36, paragraph 2.

Article 36, paragraph 5, cannot therefore lead the Court to find

that the Bulgarian Declarstion of 1921 provides a basis for its

jurisdiction to deal with the case.
In these circumstances it is

unnecessary for the Court to proceed to consideration of the other

Bulgarian Preliminary Objections.

*

Consequently, the Court finds, by tmelve votes to four, that

it is vithout jurisdiction to sdjudicute upon the dispute bmught before

it by the Application of the Government of Israel. Vice-PresidenZtAF~ULLA'KHA has appendeda Declarationto the

Judgmsnt: JudgesBilDkWI andARUND-UGONhaveappended .staternestof.

their SeparateOpinions. JudgesSir..Hersc LhAUTERPACHTW,ELLINGTON

KOO and SïrPërcySPEPJDXh Raveappendedto the Judgmenta statement

of theirJoint:Dissefit' Oingnion. Judgead hoc GOITEIN has appended

to the~udgmenta statement of liisDissentingOpinion.

The Hague,May 26th,1959.